COURT OF APPEALS DECISION DATED AND FILED January 13, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT I |
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State of Plaintiff-Respondent, v. Antonio D. Harris, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Antonio D. Harris appeals a judgment of conviction, entered after a jury found him guilty of possession of cocaine, with intent to deliver (between one and five grams), second or subsequent offense. See Wis. Stat. §§ 961.41(1m)(cm)1r., 961.48(2)(m) (2005–06).[1] The only issue on appeal is whether the circuit court erred when it denied Harris’s motion to suppress the cocaine. We affirm.
¶2 The essential facts are undisputed, and are found in the
suppression–hearing testimony of the two police officers who arrested Harris. Milwaukee Police Officer Roosevelt Jenkins,
who had been assigned to undercover narcotics duty for the past three years,
testified that the 2600 block of
¶3 On July 8, 2005, Officer Jenkins was patrolling the area with
his partner, Officer Shawn Burger, when they saw two young men standing inside
the fenced–in front yard of
¶4 Officer Burger testified that Jenkins had told him about the
drug–dealing complaints related to the house at
¶5 The circuit court made the following findings of fact:
· Both police officers were “very credible.”
·
The entire block, and “especially” the house at
· Harris “start[ed] walking backwards” when the officers approached.
· When the officers asked Harris for his name and whether he knew anyone at the house, he was “very nervous” and “still doing some backpedaling.”
· Officer Burger noticed that Harris was wearing an electronic monitoring ankle bracelet and alerted Officer Jenkins to that fact.
· Because drug dealers are often armed, the officers feared for their safety and, therefore, decided to do a pat-down search of both men.
¶6 A circuit court’s ruling on a motion to suppress evidence
presents a mixed question of fact and law.
State v. Wallace, 2002 WI App 61, ¶8, 251
¶7 An investigatory stop is permissible if the officers
reasonably suspect, considering the totality of the circumstances, that some
type of criminal activity either is taking place or has occurred. See Terry
v. Ohio, 392
¶8 In his brief, Harris characterizes the issue on appeal as
“whether the officers had a right, based on all of the circumstances … to
detain, search and then begin questioning” Harris. Harris suggests that the men were merely
“standing in a high crime area” and that factor, standing alone, does not
justify detaining Harris.
¶9 Harris’s argument is misplaced because it rests on factual
findings that the circuit court did not make.
Harris asserts that Officers Jenkins and Burger “restrained” Harris and
“conduct[ed] the pat[–]down search[] prior to questioning” him. The circuit court, however, found that the
officers asked several questions of Harris before conducting the pat–down
search.[3] Harris’s nervousness when answering those
questions was one of the factors that led to the officers’ decision to perform
a pat–down search. Harris’s
“backpedaling” away from them was another factor that the officers cited in
their testimony. And, the presence of
the electronic monitoring ankle bracelet alerted the officers that Harris was
either on probation, parole, or released on bail. Those factors, combined with the fact that
Harris was standing in the front yard of a house known for drug trafficking,
constitute “specific articulable facts” that gave rise to a “reasonable
suspicion” that Harris is or was violating the law. See Washington, 2005 WI App 123, ¶16,
284
¶10 We conclude that the pat–down search of Harris did not violate Harris’s constitutional rights. Harris’s conduct during that search—his shaking hands, tensed muscles, and lack of cooperation, coupled with the “unnatural bulge” noticed during the pat–down search, justified the continued detention while the officers ran Harris’s name through their computer. Once the officers learned of the existence of the “VOP” warrant, they had probable cause to arrest Harris. Therefore, the circuit court correctly denied Harris’s suppression motion.
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2005–06 version unless otherwise noted.
[2]
After having identified himself or herself as a law enforcement officer, a law enforcement officer may stop a person in a public place for a reasonable period of time when the officer reasonably suspects that such person is committing, is about to commit or has committed a crime, and may demand the name and address of the person and an explanation of the person’s conduct. Such detention and temporary questioning shall be conducted in the vicinity where the person was stopped.
[3] Harris does not argue that the circuit court’s factual findings were clearly erroneous.